Appeal No. 2000-2061 Page 9
Application No. 08/463,843
have been obvious for one of ordinary skill in the art to add a thickened heel cavity to the
Makovski footwear.
We cannot subscribe to the examiner’s position regarding the Makovski groove, for
there is no explicit language in the reference that supports it and thus the conclusion the
examiner reaches is based only upon speculation. Moreover, the appellants’ argument
regarding the broken line in Figure 3 cannot be ignored, and it certainly detracts from the
examiner’s theory. We reach the same conclusion with regard to thickening the cavity at
the heel of the Makovski article, for we agree with the appellants that one of ordinary skill in
the art would not have been motivated to add a thickened heel area to flat slipper-type
footwear of the type disclosed by Makovski.
For the reasons set forth above, it is our opinion that the combined teachings of
Makovski and Desma-Werke fail to establish a prima facie case of obviousness with
respect to the subject matter recited in claims 15, 16, 18, 20, 21, 23, 25-27, 30, 34, 39-43,
46 and 47. This rejection is not sustained.
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